Provisional text

ORDER OF THE GENERAL COURT (Fifth Chamber)

15 March 2019 ([\*](#Footnote*))

(Action for annulment — Competition — Agreements, decisions and concerted practices — Market in metal packaging — Decision to open an investigation — Act not open to challenge — Inadmissibility)

In Case T‐410/18,

**Silgan Closures GmbH,** established in Munich (Germany),

**Silgan Holdings, Inc.,** established in Stamford, Connecticut (United States),

represented by H. Wollmann, D. Seeliger, R. Grafunder and V. Weiss, lawyers,

applicants,

v

**European Commission,** represented par T. Christoforou, B. Ernst, G. Meessen, C. Vollrath and L. Wildpanner, acting as Agents,

defendant,

APPLICATION under Article 263 TFEU for annulment of Commission Decision C(2018) 2466 final of 19 April 2018, by which the Commission initiated a proceeding under Article 101 TFEU in Case AT.40522 — Pandora,

THE GENERAL COURT (Fifth Chamber),

composed of D. Gratsias (Rapporteur), President, I. Labucka and A. Dittrich, Judges,

Registrar: E. Coulon,

makes the following

**Order**

**Background to the dispute**

1        The applicants, Silgan Closures GmbH and Silgan Holdings, Inc., are companies active, inter alia, in the metal packaging sector (metal containers and closures). In 2015, the Bundeskartellamt (Federal Cartel Office, Germany) opened an investigation in respect of several companies in the sector, including companies in the group to which the applicants belong. In connection with that investigation, the companies referred to, belonging to the same group as the applicants, applied for leniency and cooperated with the Federal Cartel Office by providing information.

2        A meeting intended to prepare a settlement was held between the Federal Cartel Office and the representatives of those companies on 8 September 2016.

3        By decision of 19 April 2018, the European Commission decided, pursuant to Article 2(1) of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 and 102 TFEU] (OJ 2004 L 123, p. 18), to initiate a proceeding under Article 101 TFEU against several companies active in the metal packaging sector, including the applicants (Case AT.40522 — Pandora) (‘the contested decision’).

**Procedure and forms of order sought**

4        By application lodged at the Court Registry on 4 July 2018, the applicants brought the present action.

5        By separate document lodged at the Court Registry on 14 September 2018, the Commission submitted a plea that the action is inadmissible.

6        By documents lodged at the Court Registry on 18 and 26 September 2018, respectively, the Federal Republic of Germany and the Council of the European Union applied for leave to intervene in the present proceedings in support of the form of order sought by the Commission.

7        The applicants claim that the Court should:

–        reject the plea of inadmissibility;

–        annul the contested decision;

–        order the Commission to pay the costs.

8        The Commission contends that the Court should:

–        dismiss the action as inadmissible;

–        order the applicants to pay the costs.

**Law**

9        In the plea of inadmissibility, the Commission contends that the contested decision does not affect the interests of the applicants by bringing about a distinct change in their legal position, so that the action must be dismissed as inadmissible.

10      For their part, the applicants submit that the specific circumstances of the present case are such as to make the contested decision a challengeable act. In that connection, they claim that Articles 104 and 105 TFEU confer upon the Commission the power to initiate a proceeding under Article 101 TFEU only in compliance with the principles of subsidiarity and proportionality. In addition, the adoption of the contested decision resulted, in their submission, in the Federal Cartel Office being relieved of its competence and, therefore, in the opportunity to benefit from the latter’s leniency programme no longer being available to the applicants. Furthermore, they claim that that decision led to the interruption of the time limit for bringing proceedings in Germany and meant that the investigation could not possibly be concluded within a reasonable period. Finally, the applicants claim that they are now compelled to define their strategy in the light of the investigation opened by the Commission, which affects their legal position.

11      Under Article 130(1) and (7) of the Rules of Procedure of the General Court, on the application of the defendant, the Court may decide on inadmissibility or lack of competence without going to the substance of the case. In the present case, since the Commission has requested the Court to give a ruling on inadmissibility, and the Court considers that it has sufficient information available to it from the material in the file, the Court has decided to give a ruling without taking further steps in the proceedings.

12      Under Article 263 TFEU, an action for annulment may be brought against acts, other than recommendations and opinions, intended to produce legal effects vis-à-vis third parties.

13      In order to determine whether an act may be the subject of such an action, importance must be given to the substance of that act, the form in which an act or decision is adopted being in principle irrelevant to the right to challenge such acts. Only measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position may be the subject of an action for annulment (judgment of 19 January 2017, *Commission* v *Total and Elf Aquitaine*, C‐351/15 P, EU:C:2017:27, paragraphs 35 and 36).

14      Thus, an action for annulment is, in principle, only available against a measure by which the institution concerned definitively determines its position upon the conclusion of an administrative procedure. On the other hand, intermediate measures whose purpose is to prepare for the definitive decision cannot be treated as acts open to challenge (judgment of 19 January 2017, *Commission* v *Total and Elf Aquitaine*, C‐351/15 P, EU:C:2017:27, paragraph 37).

15      In that connection, whilst measures of a purely preparatory character may not themselves be the subject of an action for annulment, any legal defects therein may be relied upon in an action directed against the definitive act for which they represent a preparatory step, which guarantees effective and complete judicial protection (judgment of 11 November 1981, *IBM* v *Commission*, 60/81, EU:C:1981:264, paragraph 12).

16      The effects and the legal character of the contested decision, adopted pursuant to Article 2(1) of Regulation No 773/2004, must be determined in the light of the purpose of that decision in the context of the procedure resulting in a decision pursuant to Chapter III of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1) (see, to that effect, judgment of 11 November 1981, *IBM* v *Commission*, 60/81, EU:C:1981:264, paragraph 13).

17      The procedure was designed to enable the undertakings concerned to communicate their views and to provide the Commission with the fullest information possible before it adopted a decision affecting their interests. Its purpose is therefore to create procedural guarantees for the benefit of the latter and, as may be seen in Article 10 of Regulation No 773/2004, to ensure that the undertakings have the right to be heard by the Commission (see, to that effect, judgment of 11 November 1981, *IBM* v *Commission*, 60/81, EU:C:1981:264, paragraph 14).

18      However, an action for annulment against the initiation of a proceeding under Article 101 TFEU might make it necessary for the EU judicature to arrive at a decision on questions on which the Commission has not yet had an opportunity to state its position and would as a result anticipate the arguments on the substance of the case, confusing different procedural stages both administrative and judicial. It would thus be incompatible with the system of the division of powers between the Commission and the EU judicature and of the remedies laid down by the Treaty, as well as the requirements of the sound administration of justice and the proper course of the administrative procedure to be followed in the Commission (see, to that effect, judgment of 11 November 1981, *IBM* v *Commission*, 60/81, EU:C:1981:264, paragraph 20).

19      It follows that a measure such as the contested decision, by which the Commission initiates a proceeding under Article 101 TFEU, produces no more than the ordinary effects of any procedural step and, apart from the procedural aspect, does not affect the legal position of the applicants (see, to that effect, judgment of 11 November 1981, *IBM* v *Commission*, 60/81, EU:C:1981:264, paragraph 17).

20      Regarding, more specifically, the consequence provided for in Article 11(6) of Regulation No 1/2003 — that the initiation of the proceeding referred to in the contested decision relieves the competition authorities of the Member States of their competence to apply Article 101 TFEU in respect of the acts that are the subject of that proceeding — this has the effect of protecting the applicants from parallel proceedings brought by those authorities. Therefore, that consequence does not adversely affect their interests (see, to that effect, judgment of 11 November 1981, *IBM* v *Commission*, 60/81, EU:C:1981:264, paragraph 18).

21      This holds true not only when no national authority has opened a relevant proceeding, but, a fortiori, when such authority has initiated such a proceeding and is relieved of its competence by virtue of Article 11(6) of Regulation No 1/2003. If a decision to initiate a proceeding under Article 101 TFEU does not affect the legal position of the undertaking concerned when it is not, until that point, the subject of any other proceeding, this is particularly the case when a proceeding has already been initiated against the undertaking in question in an investigation opened by a national authority.

22      The applicants therefore incorrectly rely on Articles 104 and 105 TFEU, which provide for a certain number of interactions between the Commission’s competence and that of the Member States regarding the implementation, inter alia, of Article 101 TFEU. Those provisions concern only potential cases which are not covered by a regulation implementing Article 101 TFEU adopted on the basis of Article 103 TFEU, such as Regulation No 1/2003. As is apparent from recital 17 of that regulation, the rule established in Article 11(6) of that regulation (see paragraphs 20 and 21 above) is designed to ensure that EU competition rules are applied consistently and the network of public authorities, composed of the Commission and the competent national authorities applying the competition rules in close cooperation, is managed in the best possible way.

23      In those circumstances, the fact that the applicants took the necessary steps ultimately to benefit from the leniency programme introduced by the Federal Cartel Office is irrelevant.

24      There is nothing to prevent the applicants from requesting that the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17) be applied to them. Moreover, the coexistence and autonomy that thus characterise the relationships between the EU leniency programme and those of the Member States are a reflection of the system of parallel competence between the Commission and national competition authorities established by Regulation No 1/2003. Thus, in the case of a cartel the anticompetitive effects of which are liable to manifest themselves in several Member States and, consequently, may give rise to the intervention of various national competition authorities, as well as the Commission, it is in the interest of an undertaking which wishes to benefit from the leniency system in respect of its participation in the cartel in question to submit applications for immunity, not only to the national authorities potentially competent to apply Article 101 TFEU, but also to the Commission (see, to that effect, judgment of 20 January 2016, *DHL Express (Italy) and DHL Global Forwarding (Italy)*, C‐428/14, EU:C:2016:27, paragraphs 58 and 59).

25      In such circumstances, it therefore falls to the undertaking concerned wishing to benefit from such programme to undertake the necessary steps so that, if the Commission were to exercise its competence under Regulation No 1/2003, the potential leniency advantages to that undertaking would be affected as little as possible, or even not at all.

26      Furthermore, the interruption of the time limit brought about by the adoption of the contested decision amounts to no more than the ordinary effects of a procedural step affecting exclusively the procedural, not legal, position of the undertaking concerned by the investigation (judgment of 11 November 1981, *IBM* v *Commission*, 60/81, EU:C:1981:264, paragraph 17). That assessment relating to the purely procedural nature of those effects is valid not only in the light of the interruption of the limitation period laid down in Article 25 of Regulation No 1/2003, but also in the light of the interruption of the limitation period in respect of the powers of the national authorities to impose any penalties that may be provided for by national law.

27      Accordingly, the applicants’ arguments alleging infringement of the obligation to close the present case within a reasonable period are also bound to fail. If, at the end of the proceeding initiated by the Commission, the applicants are of the view that that institution failed to fulfil its obligations as regards the length of the proceeding, they will be able to assert their rights by bringing an action that they deem appropriate for that purpose. In addition, the fact that any investigation by the Federal Cartel Office can be resumed only after the end of the Commission’s investigation is merely an unavoidable and purely procedural consequence of that national authority’s being relieved of its competence under Article 11(6) of Regulation No 1/2003. That fact cannot therefore have an impact on the finding that the contested decision is a preparatory act which does not produce legal effects vis-à-vis the applicants.

28      Similarly, the fact that the applicants must now define the strategy that they will adopt in the Commission’s investigation is also a purely procedural consequence of the initiation of that investigation, so that it cannot transform the contested decision into an act which affects the legal position of the applicants, and therefore into a challengeable act.

29      The fact that, in the present case, the contested decision was adopted before the statement of objections was notified to the applicants is also irrelevant. According to Article 2(1) of Regulation No 773/2004, the Commission may decide to initiate proceedings with a view to adopting a decision pursuant to Chapter III of Regulation No 1/2003 at any point in time, but no later than the date on which it issues a statement of objections. As a result, the fact that the contested decision was adopted before the statement of objections was notified to the applicants does not in any way change the nature of the contested decision as a preparatory act which does not affect the applicants’ legal position.

30      It is apparent from the foregoing determinations that the contested decision is a preparatory act which does not produce legal effects vis-à-vis the applicants for the purposes of Article 263 TFEU, so that the plea of inadmissibility raised by the Commission must be upheld and the action must therefore be dismissed as inadmissible.

31      Pursuant to Article 144(3) of the Rules of Procedure, where the defendant has lodged a plea of inadmissibility or of lack of competence, as provided in Article 130(1) of those rules, a decision on the application to intervene is not to be given until after the plea has been rejected or the decision on the plea reserved. In the present case, as the action is being dismissed as inadmissible in its entirety, there is no need to adjudicate on the applications to intervene submitted by the Federal Republic of Germany and the Council.

**Costs**

32      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

33      In addition, under Article 144(10) of the Rules of Procedure, if, as in the present case, the proceedings in the main case are concluded before the application to intervene has been decided, the applicant for leave to intervene and the main parties must each bear their own costs relating to the application to intervene. Given that the applications to intervene were not notified to the applicants and the Commission and they were therefore not put in a position where they might incur costs, the Federal Republic of Germany and the Council must be ordered to each bear their own costs in that regard.

On those grounds,

THE GENERAL COURT (Fifth Chamber)

hereby orders:

1.      **The action is dismissed.**

2.      **There is no need to adjudicate on the applications to intervene submitted by the Federal Republic of Germany and the Council of the European Union.**

3.      **Silgan Closures GmbH and Silgan Holdings, Inc., shall bear their own costs and pay the costs incurred by the European Commission.**

4.      **The Federal Republic of Germany and the Council shall bear their own costs relating to the applications to intervene.**

Luxembourg, 15 March 2019.

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| E. Coulon | | D. Gratsias |

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| Registrar | | President |

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[\*](#Footref*)      Language of the case: German.